10/21. The Senate Judiciary Committee
held a hearing titled "Protecting Our National Security from Terrorist Attacks:
A Review of Criminal Terrorism Investigations and Prosecutions". Attorney
General John Ashcroft did
not appear, but sent one Assistant Attorney General, and two U.S. Attorneys, in
his place.

Several of the Democrats on the Committee offered harsh criticism of the Attorney General
and the Department of Justice (DOJ). Although, much of their criticism
focused on matters
unrelated to the PATRIOT Act, such as gun control, CIA leaks, and the Washington DC snipers.

Sen. Patrick Leahy
(D-VT), the ranking Democrat on the Committee, wrote in his
opening statement that "I expect the Attorney General to participate in
these hearings, and I am disappointed that we will not be
hearing from him today. Unlike other senior Administration
officials who regularly participate in oversight hearings,
Attorney General Ashcroft has appeared before this Committee
only once this year, and then only for a short time."

He also criticized Ashcroft at length for his "dismissive attitude" about,
and attempts to marginalize, critics of the DOJ. He said that this is "beneath
the dignity of the Department of Justice".

Sen. Ted Kennedy (D-MA) stated that
"only the Attorney General can supply adequate answers to our questions". Kennedy
criticized the Attorney General for "barnstorming the country",
and waging a "public relations" campaign, rather than meeting with Senators.

Sen. Joe Biden (D-DE) stated that the government
has "done a pretty good job", citing the breakup of terror cells. And, he reiterated
his support for the PATRIOT Act. But, he continued, that he
is troubled by the DOJ's "lack of candor". He said that "the Department operates in a
shroud of secrecy". He warned the DOJ officials present at the hearing that "the Act will
be repealed unless you guys get your act together." He called the Attorney General's
absence from the hearing "outrageous".

Republican members of the Committee did not criticize the
Attorney General or the DOJ. Sen. Orrin Hatch
(R-UT) (at right), the Chairman of the Committee, said in his
opening statement that the "inquiry will attempt to cut through the
rhetoric, confusion, and distortion to get to the facts necessary to find out if
we are protecting our citizens’ lives and their liberties."

He stated that the next hearing on this issue is tentatively set for November
5, and that the Committee may hold field hearings on this issue during the next
recess.

Sen. John Cornyn (R-TX) said "I worry
about hysterical claims about civil liberties violations." He said that they
undermine legitimate claims.

Internet Surveillance. Christopher Wray, Assistant Attorney General in
charge of the Criminal Division,
testified at the hearing regarding several of the provisions of the PATRIOT Act
that have been criticized.

Wray wrote that "The Patriot Act also brought the law up to date with current
technology, so we no longer have to fight a digital-age battle with antique
weapons. Terrorists, like drug dealers and other organized criminals, have
employed modern technology to conduct and conceal their activities. They are now
trained to thwart surveillance by rapidly changing cell phones. The Patriot Act
simply leveled the playing field by allowing terrorism investigators to adapt to
these methods. Section 216 clarified that the authority to use pen registers and
trap-and-trace devices -- long used for performing surveillance on phones -- may
be sought from a court for Internet communications.

Sneak and Peak Warrants. Wray also addressed sneak and peak warrants.
He wrote that "Another important tool has been the court-approved delayed notice
search warrant. This warrant allows investigators, with court approval, to delay
notifying the target of a search for a limited time while the warrant is
executed. Authority to delay notice can be used only upon the issuance of a
court order in narrow circumstances, such as when delay is necessary to protect
witnesses and cooperators, to avoid the disclosure of undercover operations, or
to prevent the removal or destruction of evidence. This is a valuable tool, the
use of which has long been upheld by courts nationwide in investigations of
organized crime, drug offenses, and child pornography. The Patriot Act simply
codified the case law in this area to provide certainty and nationwide
consistency in terrorism and other criminal investigations."

Sneak and peak warrants are addressed in Section 213 of the PATRIOT Act. The
Act does not sunset this provision. However, Sen. Leahy, Sen. Craig, and Sen.
Feingold, all members of the Judiciary Committee, have each sponsored bills that
would sunset this provision. Also, the Otter amendment in the House would bar
use of federal funds to implement Section 213. (See, following story.)

Sen. Feinstein defended this Section of the PATRIOT Act. She said that it is
merely a codification of case law, and that "it was actually narrower than the
authority that existed before" passage of the PATRIOT Act.

Roving Wiretaps. Wray also wrote in his
prepared
testimony that "``Roving´´ wiretaps, when approved by a court, allow
investigators to conduct electronic surveillance on a particular suspect, rather
than a particular telephone. This technique has been used for over a decade to
investigate ordinary crimes, including drug offenses and racketeering; thanks to
the Patriot Act, terrorism investigators now have the same valuable tool."

See also,
prepared testimony of Patrick Fitzgerald, the U.S. Attorney for the Northern
District of Illinois, and
prepared testimony of Paul McNulty, the U.S. Attorney for the Eastern
District of Virginia.

On September 10 the EPIC submitted a FOIA request to the DOJ requesting records
related to an August 14, 2003 memorandum from Guy Lewis, of the DOJ's Executive Office for
United States Attorneys, regarding an amendment offered in the House by
Rep. Butch Otter (R-ID).

Rep. Otter offered an amendment to
HR 2799, the
Commerce, Justice, State and the Judiciary, and Related Agencies Appropriations Act
for FY 2004. This is House Amendment 292. The House approved this amendment by a vote
of 309-118 on July 22, 2003. See,
Roll Call No. 408.

This short amendment provides, in full, that "None of the funds made
available in this act may be used to seek a delay under Section 3103a(b) of
title 18 United States Code." The PATRIOT Act, at Section 213, amended
18 U.S.C.
§ 3103a to allow a court to order the delay of
notice of a search warrant, if it finds "reasonable cause". This is also
sometimes referred to as the "sneak and peak" provision. (Rep. Otter's amendment
could not address substantive law, since it was an amendment to an
appropriations bill, which can only address appropriations.)

The House passed the bill, as amended. The Senate has not yet approved an CJS
appropriations bill for FY 2004. The Senate Appropriations Committee passed
S 1585, its
version of the bill, on September 5, without the Otter amendment.

There are several substantive bills pending in the Congress that would
address delayed notice of search warrants.

Similarly, on October 1, Sen. Patrick Leahy (D-VT) and
others introduced
S 1695,
the "PATRIOT Oversight Restoration Act". It pertains to the sunsetting of
various provisions of the USA PATRIOT Act. This Act was passed by the 107th Congress as
HR 3162
shortly after the terrorist attacks of September 11, 2001. It became Public Law 107-56
on October 26, 2001. The original PATRIOT Act provides that some of its provisions sunset,
or cease to have effect, on December 31, 2005. Sen. Leahy's bill provides for the
sunsetting of more provisions.

Another bill,
S 1701, the
"Reasonable Notice and Search Act", introduced by
Sen. Russ Feingold (D-WI)
on October 2, would also sunset Section 213.

The EPIC also filed a motion for a preliminary
injunction, seeking expedited processing of its request for records. See,
memorandum [17
pages in PDF] in support of motion for preliminary injunction. It argues that
this is matter of interest to the public and news media, and that "The current
and ongoing debate on the Patriot
Act will be hampered by further delay in DOJ’s response to plaintiff’s request."

The EPIC memorandum quotes from an August 22, 2003 article in the Washington
Post, which states that the DOJ "urged
U.S. attorneys to contact congressional representatives who voted against a key
anti-terrorism provision of the USA Patriot Act, part of a broad-based publicity
campaign on behalf of the law ..."

The EPIC now seeks records pertaining to this lobbying campaign.

House Subcommittee Holds Hearing on
Splitting Ninth Circuit

10/21. The House Judiciary Committee's
Subcommittee on Courts, the Internet and Intellectual Property (CIIP) held a hearing on
HR 2723,
the Ninth Circuit Court of Appeals Judgeship and Reorganization Act of 2003. This bill would
split the U.S. Court of Appeals for the Ninth Circuit into two circuits, with
California, Nevada and Arizona remaining in a new Ninth Circuit, and Washington,
Oregon, Idaho, Montana, Alaska and Hawaii forming a new 12th Circuit.

The Ninth Circuit has by far the largest number of Appeals Court judges. It
currently has 28 authorized active judges. The Judicial Conference has proposed
adding 7 more. Also, there are usually about 15 to 20 senior judges who sit on
panels.

Arthur Hellman, a professor at the University of Pittsburgh Law School, wrote
in his prepared
testimony [49 pages in PDF] that "the court will be a court of 50 or more
judges. I believe that there is a real question whether the judges on a court of
that size will be able to know one another as members of a court should do."

He also noted that for the last ten years "the Ninth Circuit Court of Appeals
has consistently ranked at or near the bottom among federal appellate courts in
the median time interval from filing the notice of appeal to final disposition."

Proposals to split the Circuit have been advanced for some time. At this
hearing, a group of Ninth Circuit Judges offered a relatively new argument for
keeping one huge circuit intact -- computers.

For example, Judge Alex Kozinski wrote in his
prepared testimony
in opposition to HR 2723 that "The advances in technology in the past quarter
century have transformed the world, and that world includes the court system.
The Ninth Circuit was the first circuit to institute an automated docketing
system; we are now on the verge of an electronic web-based filing system. The
use of instantaneous electronic mail has allowed circuit judges over wide
geographic distances to communicate as if they were in the same courthouse.
Videoconferencing for motion panels, and administrative meetings has become
common place."

He added that "the court's ability to manage its caseload, and to track novel
and potential precedential though the use of computer programs has allowed this
court to function more efficiently today than it ever has. I believe that HR
2723 would impede much of the progress we have made in managing a large
appellate court."

Similarly, Chief Judge Mary Schroeder wrote in her
prepared testimony
that "Due to the advances in technology, such as the automated docket, computer
aided legal research, instantaneous electronic mail, videoconferencing, along
with the economies of scale that can be achieved in a large circuit, we have
increased our efficiency and our caseload has become more, and not less,
manageable."

The Public Utility
Commission of Texas (PUC) determined in an arbitration proceeding that AT&T,
and not Southwestern Bell, was responsible for paying the increased
interconnection costs resulting from Southwestern Bell having to carry traffic
outside a particular calling area to a distant point of interconnection (POI)
selected by AT&T.

AT&T filed a complaint in
U.S. District Court (WDTex) seeking
judicial review of this determination. The District Court granted summary
judgment to AT&T, reversing the PUC order, and remanding. This appeal followed.
The Appeals Court affirmed.

This case is Southwestern Bell Telephone Co. v. Public Utilities
Commission of Texas, et al., U.S. Court of Appeals for the Fifth Circuit,
No. 03-50107, an appeal from the U.S. District Court for the Western District of
Texas.

More News

10/21. The World Trade Organization (WTO)
announced that Hong Kong, China will host the Sixth WTO Ministerial
Conference. However, the WTO did not set a date. See, WTO
release.

11/21. The Department of Commerce's Bureau
of Industry and Security (BIS) announced that November 21 is the deadline to
submit comments to it regarding its foreign policy-based export controls. This
category includes high performance computers, encryption items, as
well as chemical and biological agents, missiles, and "implements of torture".
The BIS is reviewing these controls in the Export Administration Regulations to
determine whether they should be modified, rescinded or extended. See,
notice in the Federal Register, October 21, 2003, Vol. 68, No. 203, at Pages
60050-60052.

10/20. The U.S. Patent and Trademark Office
(USPTO) published a
notice in the Federal Register regarding amendments to its rules of practice
to conform them to certain amendments made to the regulations under the Patent
Cooperation Treaty (PCT). See, Federal Register, October 20, 2003, Vol. 68, No.
202, at Pages 59881-59889.

10/21. The U.S.
Court of Appeals (7thCir) issued its
opinion [12 pages in PDF] in Doe v. GTE, a case involving
Section 230 interactive
computer services immunity. The District Court dismissed
the complaint against a pair of interactive computer service providers (or ISPs)
who had merely provided web hosting services to smut merchants who had
surreptitiously videotaped the plaintiffs, and then sold the videotapes through
their web sites. The Appeals Court affirmed. The Court also held that the ISPs
are not liable under the Electronic Communications Privacy Act (ECPA) when their
users sell videotapes that were made in violation of the ECPA.

The plaintiffs (below) and appellants (on appeal) are the college athletes
who were secretly videotaped in their locker rooms. The videotapes were then
sold by web based businesses, who obtained web hosting services from several
companies, including GTE and Genuity. (Both are now subsidiaries of
Verizon.)

The athletes filed a John Doe complaint, which was removed to the
U.S.
District Court (NDIll), against the smut merchants, their web site hosting
companies, and the universities where the videotaping took place. They alleged
violation of 42 U.S.C. §
1983 and the Electronic Communications Privacy Act (ECPA),
18 U.S.C. § 2511.

The universities prevailed on qualified immunity. The smut merchants (one of
whom was named Franco) either defaulted -- the athletes have $500 Million in
uncollectible judgments -- or could not be served. Several web hosting companies
went bankrupt. This left only two defendants, GTE and Genuity. The District
Court then dismissed the complaint against these defendants on the grounds that
they have immunity, as interactive computers services, under 47 U.S.C. § 230.
This appeal followed.

Section 230(c)(1) provides that "No provider or user of an interactive
computer service shall be treated as the publisher or speaker of any information
provided by another information content provider."

Nevertheless, the athlete appellants tried to argue their way around Section
230 and this body of precedent.

They argued that GTE and Genuity are liable under the ECPA, and cited Section
230(e), which provides that the ECPA is not limited by Section 230. The Court
concluded that Franco and the other smut merchants had intercepted oral
communications, because the video tapes also included audio. However, the Court
continued that neither GTE nor Genuity had intercepted anything, and that the
ECPA does not create secondary liability.

The plaintiffs also argued for a tortured construction of the statute, and
that GTE and Genuity are liable for negligent entrustment of facilities. The
Appeals Court rejected these arguments.

However, the Appeals Court left open a possible argument for future cases. It
wrote that "Maybe plaintiffs would have a better argument that, by its contracts
with Franco, GTE assumed a duty to protect them. No third-party-beneficiary
argument has been advanced in this court, however, so we need not decide how it
would fare."

This case is John Doe, et al. v. GTE Corporation and Genuity, Inc.,
U.S. Court of Appeals for the 7th Circuit, No. 02-4323, an appeal from the U.S.
District Court for the Northern District of Illinois, Eastern Division, D.C. No.
99 C 7885, Judge Charles Kocoras presiding.

TIME? Joseph
Liu (Boston College of Law) will give a lecture titled "Rationalizing
Trademark Defenses". This is a part of
Georgetown University Law Center's (GULC)
Colloquium on Intellectual Property & Technology Law Series. For more information,
contact
Julie Cohen at 202 662-9871. Location: GULC, 600 New Jersey Ave., NW.

Deadline to submit reply comments to the
Federal Communications Commission (FCC) regarding its notice of proposed
rulemaking (NPRM) pertaining to its rules governing the provision of air
ground telecommunications services on commercial airplanes in order to enhance
the options available to the public. The FCC adopted this NPRM on April 17,
2003, and released it on April 28, 2003. This is WT Docket No. 03-103. See,
notice in the Federal Register, July 25, 2003, Vol. 68, No. 143, at Pages
44003 - 44011.

Deadline to submit requests to the Internal
Revenue Service (IRS) to speak at its October 23, 2003 hearing regarding
its notice of proposed rulemaking (NPRM) regarding computation and allocation
of the credit for increasing research activities for members of a controlled
group of corporations or a group of trades or businesses under common control.
The rules implement the research and development tax credit codified at
26 U.S.C. § 41.
See,
notice in the Federal Register, July 29, 2003, Vol. 68, No. 145, at Pages
44499 - 44506.

12:00 NOON. Deadline to submit comments to the
Office of the U.S. Trade Representative (USTR)
regarding countries that deny adequate and effective protection of
intellectual property rights or deny fair and equitable market access to U.S.
persons who rely on intellectual property protection. Section 182 of the Trade
Act of 1974 requires the USTR to prepare a report. Section 182, which is
codified at 19
U.S.C. § 2242, is also referred to as "Special 301". This is an out of
cycle review. The USTR announced that this review will focus on Korea.
However, it added that "Additional countries may also be reviewed as a result
of the comments received pursuant to this notice, or as warranted by events."
See,
notice in the Federal Register, October 3, 2003, Vol. 68, No. 192, at Page
57503.

RESCHEDULED FOR OCTOBER 28.2:00 PM. The House
Ways and Means Committee will meet to mark up
HR 2896,
the "American Jobs Creation Act of 2003". This bill would, among other
things, replace the FSC & ETI tax regimes that the WTO held to be
illegal export subsidies. Location: Room 1100, Longworth Building.

5:30 - 7:30 PM. The American
Enterprise Institute (AEI) will
host a book forum. Charles Murray will discuss his book (due for release on
October 21) titled Human Accomplishment : The Pursuit of Excellence in the
Arts and Sciences, 800 B.C. to 1950. See,
Amazon page. See also,
AEI notice. Location: AEI, Twelfth floor, 1150 17th St., NW.

Deadline to submit written comments to the
Internal Revenue Service (IRS) regarding its notice of proposed rulemaking
(NPRM) regarding computation and allocation of the credit for increasing
research activities for members of a controlled group of corporations or a
group of trades or businesses under common control. The rules implement the
research and development tax credit codified at
26 U.S.C. § 41.
See,
notice in the Federal Register, July 29, 2003, Vol. 68, No. 145, at Pages
44499 - 44506.

Tuesday, October 28

9:00 AM. The
House
Ways and Means Committee will meet to mark up
HR 2896,
the "American Jobs Creation Act of 2003". This bill would, among other
things, replace the FSC & ETI tax regimes that the WTO held to be
illegal export subsidies. Location: Room 1100, Longworth Building. This mark
up was previously scheduled for Monday, October 27.

12:00 NOON. The Cato
Institute will host a book forum. Charles Murray will discuss his book (due for
release on October 21) titled Human Accomplishment : The Pursuit of Excellence
in the Arts and Sciences, 800 B.C. to 1950. See,
Amazon page. See also,
AEI notice.
Press contact: Veronique Rodman at 202
862-4871 or vrodman@aei.org. Lunch will
follow the program. Location: Cato, 1000 Massachusetts Ave., NW.

Deadline to submit comments to the Office
of Management and Budget (OMB) regarding its proposal "to issue new guidance
to realize the benefits of meaningful peer review of the most important
science disseminated by the federal government regarding regulatory topics."
See, OMB
document [14 pages in PDF] titled "Peer Review and Information Quality".

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